29 F. 648 -

29 F1d 648

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Case Text

64;8

FEDERAL REPORTER.

unjustifiable.'fhe Belleville, Newb. Adm. 497, 500; The Ne;re7tS, 23 Fed. Rep. 448,456. The ferry-boat had a right to follow her usual course in rounding into her slip, and the tug was bound to navigate in reference to it. If the Darcy showed her green light at first, as I think she did, it was necessary for her to, turn enough to show her red light, in order to make her slip. The pilot of the tug well knew this fact, and was bound toforese,e the ferry-boat's nece.$sary turn, and to 'act accordingly. The tug had the Darcy on her own starboard hand,and the Darcy, being under the neCessity of turning in order to make her was, in effect, in the situation of a crossing vessel, although, when first seen, her heading was not cr<)ssing. By oldruie 19, therefore, the tug was the one bound tq of the way, and not the ferry-boat; and in hooking up, iI].stead()f baoking, when their courses. '!Vere crossing, the tug took the risk of being held in fault, if het; maneuver was not successfuL The Khedive, 5 App. Cas. 876; The Prima, 27 Fed. Rep. 480, 24 Fed. Rep. 495; The Gali1,eo, 28 Fed. Rep. 469, 24 Rep. 391. For these,several reasons I mUl>t hold the tug to blame. 2. As respects the ferry-bpat, the case of The Fanwood, 28 Fed. Rep. a73, 376, affirmed in the circuit, is so entirely analogous that little disctission is ,necessary. Here, as.in that case, the position, the course. and the intent of the tug were perfectly apparent, and were understood by in ample time to have avoided her. If the had a right to expect that the tug. would go out into the stream, the fl;1.ct that the tug was taking the contrary course was apparent, and it was clear that she was persisting in this course when she coqld no longer avoid the ferry-boat by any change that she could the ferry-boat could still, by stopping in time, avoid collision. The proof shows that the Darcy, at her moderate speed, would have stopped dead in the water in going a little, over two lengths. The considerable time that elapsed after Darcy's first whistle leaves no dou bt in my mind that the Darcy might have stopped completely after immediate danger of collision was manifest. She was not justified in running upon the tug because the tug did not perform her dqty; she should have sLopped in time, under old rule 21. The damages and costs must be divided.

The brig L., while on a voyage from Pensacola to Philadelphia, put into St, George's, Bermuda, in distress. The brig was subsequently condemned and sold, and, the cargo was reshipped to Philadelphia. At St. George's the master incurred charges, which, with, the freight, were liens on the cargo. To

IReported by O. Berkeley Taylor, Esq., althe Philadelphia bar.

BRADLEY'll. CARGO

OF

LUMBER.

649

meet these charges the master borrowed money, and gave Ii rlJ8pondentia bond, in which he agreed to hold the cargo until the bond was paid. The bond was for the amount advanced, plus a marine premium of 1st per cent., the lender taking the risk of the cargo to Philadelphia. In a contest between. the holder of the bond, the owners of the cargo, and the owners of the. brig, held, that, although the validity of the respondentia bond was open to doubt, the libelant must be regarded as an equitable transferree of the master's liens on the cargo, and was entitled to the benefit of them as a means of reimbursement; but, in vie.w of all the circumstances of the case, it was deemed just to confine hiIi:rto the ordinary rate of6 per cent. . 2.SAME--.-PLACE OF ADJUSTMENT.

1n this case it was proper to adjust the losses at Philadelphia.

In Admiralty. Morton P. Henry, Henry R. Edmunds, and John A. Olark, for libelant. Driver &; Ooulston, for respOlidents. BUTLER, J., (orally.) The libelrests on two different sources of claim: (1) The respondentia bond, described; (2) an equitable transfer of the master's liens, for freight and' charges incurred on account of cargo. The validity oftJhe bond is open to doubt. While I incline to believe itvalid, I am not fully satisfied that it is so. The other source of claim is; I think, free from doubt The charges incurred were a lien on the cargo; and this lien, as well as that for freight, was vested in the master. The transaction between him and. the libelant must be regarded as an equitable transfer of these liens, placing the latter in the master's stead. The roaster expressly undertook to hold the cargo for the libelant's'benefit up.til his advances were paid. The master cannot repudiate this contract, nor can his owners. The libelant is therefore to the benefit of the liens as a means of reimbursement. No valid objection exists to the combination of these liens with the bond. in this suit. The responderit is not deprived of any advantage by doing so. Every source of defense is open to him that might have been made if the claims had been sued for separately. The attachment secured everything the libelant can justly claim; and the libel was properly amended so as to embrace the liens transferred. The ascertainment of the amount chargeable to the cargo by the adjustor, at Philadelphia, must be accepted as conedt. Nbt only is there no evidence to the contrary, but the testimony of Mr. Gourlie, called by the respondent, affirmed its accuracy. It is true, Mr. Gourlie supposed the adjustment should have been made as if the cargo had been delivered to the consignee's or shippers, at Bermuda, and that, in such case, the rules of law a,pplicable would be other than those applying here. On both these points, 40wever, the court disagrees with him. Under. the peculiar circumstances ofJhis case the adjustment was properly made here. 2 Phil. Ins. § 1328;2.. a.,f.s.Mar. Ins. 2.56, 257; Hobson v. 92 U. S..397; Star of Hope, . Wall. 20$; Barnard v. Adams, 10 How. 270; MeLoan v. Oummings, 13'Pa. St. 98.. Whether made here or at Berm,uda, 'however, the applicable aJ:e the same. Lown. Av. 198; 1 Para. Mar' Law,327. ' .. '

1 ..

650

FEDERAL REPORTER.

I

The balance of freight, and the charges referred to, are ,more than sufficient to pay the libelant's advances. ,Whether his claim 'be referred to the bond, or to the equitable transfer ofthe master's liens, involves only the rate of interest he should receive. In view Mall the circumstances. it is deemed just to confine ,the libelant to the ordinary rate of 6 per cent. Tbis, will leave a small balance of freight, to which the owners of the vessel,'whclhave intervened in the suit, are entitled. As the adjustment was necessary, and properly ordered, the fee of the adjustor is rightly charged. A decree will be prepared accordingly, and entered.' "

THE SAM BROWN. JOSEPH A,. STONlll. PHOENlX Co.
11. ,THlt

SAM BROWN and' 'another.

,January 6, 1687.)

(J)iBtrict Oourt,

w: J).PtmnBt/l'DanU1..

2.

1, COLLISION::':' STEAlfERS-RULEi/ NAVIGATION-:-Loss, 0; CARGO-DAlfAGES. , Where two steamerlil, each otherfrdmopp'osite directions, both failed to comply with a ruleofnaVlgation, and in consequence a collision en· sued, ina suit the two bo,ats, the damagesresQltlDg to, the owner of a cargoin the charge of one of them will be equally divided between the boats:
S.uOIl-MEAS1htEOF DAlfAGES. ", ,, '

Where a carg6is thus lost bya collision, in a suitagoainst thewrong·doer; standi,ng rela,t,iontc;> party injur.ell, th,",S, prevai,lin g rule is, to allow, qnly the aptual damages sustalDed at the tIme and place of the loss, with Intere'st thereon. ' , '"AGAINST BOTH VESSEL!!. '

4.

And ,thisla,t,t,er rule applie,s wliere.tor such loss, 'th"e"injured party elect!! to bring a joint sQitagainst two colliding boats, oneotwhich stands ill such contract relation to him, and the other not; the damages in such joint suit , being assessable on the footing of the marine tortifor>'which both boats are answerable. and not on the basis of the contract, to which one of the boats is ' , " , a stranger,.

In the case'of'carriers or others under contract to deliver goods, the measure of dama'ges for their loss ,in is their net market value at the place of the time when they should have jI,flived there.

GooDs-Loss-DAlfAGES.

In Admiralty. ' Knox & Reed, for libelant. : Barton & Sons, for the J. S. Fh'gtcilm, for the Stone.
ACHESON, J. , 1. It cannot be alleged seriously thatfhe collision here Inwas unavoi<lable.. Beyond contlloversy. itwas due to deed, each boat seeks exoneration by casting upon the other. The night wRs¢a,lm, clear, and bright. The boats were distinctly visible to each other "'hell at least a mile apart. The stage Of water waS not less than 12 and' the witnesses agree that there was ample room for the